CITY PHILADELPHIA v. FRATERNAL ORDER POLICE (06/18/87)

decided: June 18, 1987.

CITY OF PHILADELPHIA, APPELLANTv.FRATERNAL ORDER OF POLICE, LODGE NO. 5, AND LOUIS GNIOTEK AND ELI ROCK, IN HIS CAPACITY AS ARBITRATOR, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of City of Philadelphia v. Fraternal Order of Police, Lodge No. 5 and Louis Gniotek and Eli Rock, in his capacity as Arbitrator, No. 4213 December Term, 1985.

The City of Philadelphia appeals an order of the Court of Common Pleas of Philadelphia County which affirmed an arbitration award reinstating Louis Gniotek as a Philadelphia police officer.

Gniotek was dismissed from the police force for conduct unbecoming an officer based upon allegations that he had, inter alia, solicited and accepted bribes, failed to report criminal conduct and knowingly associated with criminals. These charges were filed as a result of testimony offered by Eugene Boris, one of several vice figures who testified under oath in the matter of United States v. Martin et al., Criminal No. 84-000106, in the United States District Court for the Eastern District of Pennsylvania. Gniotek's dismissal was upheld by the police Commissioner in a first-level grievance hearing and, pursuant to the applicable Fraternal Order of Police (FOP) collective bargaining agreement, thereafter submitted to binding arbitration.

On February 18, 1985, Boris, the only witness the City had against Gniotek, appeared at the hearing pursuant to the arbitrator's subpoena, but asserted his fifth amendment privilege to remain silent and refused to offer any testimony. The City petitioned the common pleas court for an order to compel Boris' testimony and, on June 3, 1985, Judge DiBona issued an order directing him to testify or be held in contempt of court. Boris appealed that order to this Court and indicated to the City that he would not appear or testify at any future proceedings pending resolution of the subpoena appeal. The City consequently requested the arbitrator to keep the record open so that it could pursue its efforts to compel Boris' testimony and alternatively requested the

[ 107 Pa. Commw. Page 17]

arbitrator to consider him unavailable and accept the notes of the testimony he had given in the federal proceeding.

In November 1985, while the subpoena appeal was pending in this Court, the arbitrator gave the City two additional weeks to have Boris or any other witness give live testimony, and, upon the City's failure to do so, ordered Gniotek to be reinstated. The arbitrator reasoned that the matter had already been delayed a long time, that a number of hearings had been held over many months, and questioned whether the City would be able to produce Boris' testimony in the near future.

In the City's appeal to the common pleas court from the arbitrator's award, Judge DiBona disagreed with the City's assertion that the arbitrator erred in refusing to withhold any decision pending this Court's resolution of the subpoena appeal. Judge DiBona held that the arbitrator was correct in concluding that Gniotek's right to confront and cross-examine his accuser outweighed the City's right to adduce evidence demonstrating just cause for the officer's removal. He noted that in the year elapsed since the matter was scheduled for arbitration the City was provided aid and support in its attempt to secure the testimony necessary to its position, during which time Gniotek remained off the force without means of challenging his accuser. Judge DiBona determined that the equities thus favored Gniotek and accordingly affirmed his reinstatement as a police officer.

The City contends that the arbitration award should be vacated pursuant to the provisions of Section 7314(a)(iv) of the ...

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